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EEMARKS AND OriNION 

OF 

HON. F. T. FEELINGHUYSEN, 

OF XEW JERSEY. 



I. The important question to be decided by the Commission, as both 
political parties distinctly understood -when the bill creating the Com- 
mission was passed, is whether the Commission has jurisdiction or 
right to look behind and reverse the determination of that tribunal 
which in the several States has by law been established finally to de- 
cide who have been elected presidential electors. 

This Commission has in the language of the act creating it " the 
same powers, if any, now possessed for that purpose, [the purpose of 
counting the electoral vote] by the two Houses acting separately or 
together." 

The question then is, what powers have the two Houses of Congress 
acting separately or together when counting the electoral vote for 
President ? The Commission has the same ; no less, no more. 

When the two Houses meet to count the votes of the electors for 
President they do not act in their legislative capacity, but as a tri- 
bunal upon which is imposed that special duty. The legislative 
powers of Congress are specified in the Constitution, and counting 
the electoral votes is not among them. The President of the United 
States, whose concurrence is essential to all legislative action, has 
uo part in this procedure. The two Houses in counting the vote 
not only have no legislative power, but also have none of those pow- 
ers so constantly used, and which only exist as and because they are 
incident to the legislative power ; such as sending committees of 
Congress to investigate the condition of afiairs in dift'erent parts of 
the coiyitry, that Congress may possess information on which to base 
future legislation. Neither has Congress in couiiting the votes 
such power to investigate by committees or otherwise the election 
of presidential electors as it possesses for the puq)08e of ascertaining 
whether its members have been fairly elected, because while the 
Constitution expressly declares that " each House shall be judge of 
the elections, returns^ and qualifications of its own members," it no- 



4 

wliere decl.ares, either expressly or by implication, that Congress 
ahall be such judges as to the election of presidential electors ; and 
this clear provision conferring the power to investigate elections for 
Senators and Representatives, and the absence of any such provision 
as to electors, is significant and emphatic of the truth that no such 
power exists as to electors. Neither do the two Houses possess the 
judicial power belonging to a court when trying the title to an of- 
fice, because by the Constitution the judicial, legislative, and exec- 
utive powers of the Government are carefully kept separate and dis- 
tinct. The legislative branch possesses no judicial power excepting 
in the two specified cases of judging of the election of members of 
Congress and in cases of impeachment. The two Houses when they 
meet to count the votes do not assemble as a joint convention, but as 
two distinct Houses, and separate to vote on any question that arises ; 
and the very nature of this special tribunal, consisting of two distinct 
Houses, is inconsistent with having a jury, with having confront- 
ing witnesses ; there are no parties, and there is nothing about the 
procedure that is judicial. 

What power, theu, do the two Houses of Congress possess? Just 
that power named in the Constitution when it says, "the votes shall 
then be counted." And what votes are then to be counted ? Surely 
not the votes that have been given for the presidential electors by 
some seven millions of voters over a vast continent, but the votes 
cast by the presidential electors for President and Vice-President 
which the Constitution provides shall be certified to the President of 
the Senate and by him opened in the presence of the two Houses. 

The two Houses in counting the votes of the electors may de- 
termine whether the State is in such relations to the Federal Gov- 
ernment as to be entitled to vote ; whether the votes were cast on 
the day prescribed by the statutes of the United States ; whether the 
governor's certificate is genuine ; whether that certificate is true in 
its statement as to who have been appointed electors by the State ; 
but the truth of the statement of the governor's certificate in this re- 
gard is to be decided only by looking to the determination of the tri- 
bunal which the laws of the State say shall finally determine that 
fact, and not by a canvass of the popular vote of the State. The two 
Houses may inquire into any thing consistent with the nature of the 
procedure, and which the Constitution has not devolved on the States 
to regulate. 

The reasons that the Constitution does not either expressly or by 
implication provide or intend that Congress shall inquire into or can- 
vass the election of presidential electors are apparent. 

The framere of the Constitution, as its history shows, did first de- 
cide that the President and Vice-President should be chosen by Con- 
gress ; but on full debate and mature deliberation they saw the 



evil of placing one co-onlinato branch of Government mulcr the 
control of another— the executive under the control of the legisla- 
tive branch— and they determined that, except to prevent a failure 
to elect, (in that event the House voting by States should elect,) Con- 
gress should have nothing to do with the choice of President or Vice- 
President, The Constitution casts that duty on the States. It says 
that each State, large or small, shall have two votes, and also as 
many additional votes as it has Representatives, and that each State 
shall appoint the electors in such manner as the Legislature thereof 
shall direct. Under this power, the Legislature might direct that the 
electors should be appointed by the Legislature, by the executive, by 
the judiciary, or by the people. In the earliest days of the Republic, 
electors were appointed by the Legislatures. In Pennsylvania they 
were appointed by the judiciary. Now in all States except Colorado 
they are appointed by the people. And in contemplation of the Con- 
stitution the electors were not as the agents of a party to elect, but 
as independent men, responsible to no one, were to select the Presi- 
dent and Vice-President. 

More completely to separate Congress from all connection with the 
election of President and Vice-President, the Constitution provides 
that no Senator or Representative or person holding an office of trust 
or profit under the United States shall be appointed an elector. And 
it would be an anomaly indeed if, after the Constitution had thus 
carefully excluded Congress from any intermeddling with the choice 
of the President, further than to ascertain who the State said it had 
appointed, that yet Congress had absolute control over the whole sub- 
ject, and could while engaged in this summary proceeding of count- 
ing the vote adjudge and determine who should be President. If the 
claim now put forth was to reverse the decision of New York or Massa- 
chusetts as to who had been appointed the electors of those States re- 
spectively, the claim would hardly secure a patient hearing ; but the 
public have become so accustomed to disorderly proceedings in some 
of the Southern States, that the determinations of those States do not 
challenge full respect, and yet the law is the same as to all the States. 

The impracticability of the two Houses when met to count the votes 
of the presidential electors going behind the final decision of the 
States, and attempting to find out which set of electors in very truth 
have received the most votes, is a conclusive argument against the 
existence of any such power in the two Houses. If Congress enters 
upon the work of investigating which of two or more sets of electors 
have been chosen, it must do its work thoroughly, or it does gross in- 
justice. It would not answer for Congress to examine the returns of 
the county canvassing boards for the purj)ose of reversing the decision 
of the State canvassing board, and then refuse to examine the returns 
of the precincts when invited to do so, for the purposes of showing that 



the comity boards were in error. It would not answer for the two 
Houses to examine the state of the vote of Florida, Louisiana, and South 
Carolina for the purpose of showing that the Hayes electors were not 
elected, and then refuse to examine the vote of Mississippi, Alabama, 
and Georgia, when so requested, for the purpose of showing that the 
Tildon electors were not chosen. How, by possibility, could this in- 
vestigation into the popular vote be effected ? There are probably 
seven millions of votes. On the first Wednesday of December the 
electors give their votes as required by the Constitution by ballot, and 
that imports secrecy. The list of the votes is then transmitted sealed 
(secrecy again) to the President of the Senate, and these lists are 
first to be opened when the two Houses meet to count the votes. Ac- 
cording to the theory of the Constitution no one is to know until 
the two Houses are thus assembled what has been the action of the 
electoral college. And to claim that in the February before the 4th of 
March, when the President is to be inaugurated, the two Houses are 
to go behind the final determinations of the States and make a can- 
vass to find out the very truth as to which set of electors have the 
majority of lawful votes is an absurdity, because an impossibility. 
An investigation by the two Houses behind the final determination 
of the State would load to anarchy and to nothing better. 

It is urged that without such investigation by the two Houses the 
President may be elected by fraud. Then change the laws. It would, 
however, be found that the opportunity for fraud would be multi- 
plied many fold if the regulation of the election was transferred from 
the States to the General Government. 

It is said that if we take as final the determination of the State 
board the result may be that while one citizen has a popular major- 
ity another citizen will be inaugurated President. Our Government 
is not that of a mob. It is not majorities, but legal majorities that 
control. Under our system many complex functions are invoked to 
obtain an expression of the constitutional will. Thus Delaware cast 
one electoral vote for every 40,000 inhabitants, and New Jersey only 
one electoral vote for every 110,000 inhabitants. The democratic ma- 
jority in New York is 50,000, and the State government by the same 
election is republican. We have agreed to the Constitution, and if the 
expression of the will of the people is according to that instrument it 
is right. The complaint that one possibly, and I do not say probably , 
having a popular majority will not be inaugurated, seems a pretense. 

I conclude that a State is as sovereign in its right finally to de- 
termine who h;i8 been elected presidential electors as it is to deter- 
mine wlio have been electe<l legislators or governor, or to decide 
what shall be the punishment of crime within its borders, or what 
law shall regulate the transfer of property ; and as this nation ex- 
tends and grows the wisdom of making the States the final judges 



ill this aud many other things will become year by year more ap- 
parent. 

I am confirmed in the correctness of my conclusions by the im- 
pressions of distinguished public men who difl'or from me in political 
views, and even by my own opinion expressed in the Senate when 
the question had not possibly any partisan significance. 

Ecceutly, when this question was before the country, Chief- Justice 
Church, of the court of appeals of the State of New York, made this 
expression in a letter which he gave to the public : 

I have always expressed the opinion that the anthontication of the election of 
presidential electors according to the laws of each State is Uual and conclusive, and 
that there exists no power to go behind them. 

And Senator Bayard, on the 2.'>th February, 1875, when the Senate 
had under consideration the bill to provide for counting the votes for 
President and Vice-President, after reading the twelfth amendment 
to the Constitution which makes jirovision for counting the electoral 
vote, said : 

There is nothing in this language that authorizes either House of Congress or 
both Houses of Congress to interfere with the decision which has been made by the 
electors themselves and certified by them aud sent to the President of the Senate. 
There is no pretext that for any cause whatever Congress has any power, or all 
the other departmenta of the Government have any power, to refuse to receive and 
count the result of the action of the voters in the States in that election, as certified 
by the electors whom they have chasen. That questions may arise whether that 
choice was made, that questions may arise whether that election was properly held 
or whether it was a free and fair electiou, is undoubtedly true; but there is no 
machinery provided for contest, and no contest seems to have been anticipated on 
this subject. It is casits omissus, intentionally or otherwise, upon the part of those 
who framed this Government, aud we mus ttake it as it is ; and if there be neces- 
sity for its amendment, for its supplement, that must be the action of the American 
people in accordance with the Constitution itself; and I am free to say that some 
amendment on this subject should be had. 

Senator Thurman in the Senate on January 7, 1873, when the reso- 
lution authorizing an investigation as to whether the election for 
President and Vice-President had been conducted in Louisiana and 
Arkansas in accordance with the laws of the United States, expressed 
views similar to those above quoted from Mr. Bayard's speech. 

It is proper to state that both of these distinguislied Senators stated 
these views as a matter of first impressions, reserving their final judg- 
ment on the question; but first impressions with minds as well fur. 
nished as theirs are of ten more valuable than more carefully considered 
conclusions. 

In the debate of January 7, 187:{, I had the honor to follow the 
Senator from Ohio, [Mr. Thurman,] and said : 

There seems to be no way provided by Congress, and no way I believe that Con- 
gress, as the Constitution stands, can provide to try the title of an elector to his 
office. * * * I take it that the entire control over the manner of appointing the 



8 

electors is one of the reserved rights of the States, that they never surrendered 
the right of determining wha should be these electors. The States possess the 
right of determining who shall be elected and who has been elected as entirely aa 
the United States Government has the right to decide who shall represent the 
country in England. 

These views I had occasion to express again in January last when 
the bill creating this Electoral Commission was before the Senate, and 
when I had no idea of being a member of this Commission, and I have 
seen no reason for changing those views. 

And, as still further authority to show that the final decision of the 
question whether electors have been appointed is with the States, let 
me call attention to the fact that those who aided in framing and 
those who lived at the time of the adoption of the Constitution did 
not consider that Congress, even when acting with the President aa 
a Legislature, had the constitutional power to pass a law under which 
the two Houses of Congress, or any commission created by the Fed- 
eral Legislature could inquire into the number of votes by which 
electors have been elected. 

This whole subject was thoroughly considered in 1800, and a bill 
passed both Houses of Congress, but amendments not being agreed to, 
did not become a law. That bill provided that a grand committee, in its 
organization not unlike this Commission, might make inquiry and de- 
cide as to everything relative to the election of President and Vice- 
President over which the Constitution gave the General Government 
jurisdiction, but did not provide for any investigation or decision as 
to the procedure which the Constitution has devolved upon the States. 
It provided that the grand committee should examine and decide ; (1) 
as to the qualifications of persons voted for as President and Vice- 
President ; (2) as to the constitutional qualification of electors ; (3) 
whether the appointment of the electors was authorized by the State 
Legislature; (4) whether the mode prescribed by the State Legis- 
latnre had been followed ; (5) whether improper means had been used 
to influence the votes of the electors ; (6) as to the truth of the returns 
of the electors; (7) as to the time and place of giving their votes. 
And that is all. Congress did not assume that it had any consti- 
tutional right to investigate or review the vote on which the electors 
had been appointed, further than to see that it was accordiug to the 
mode prescribed by the States. On the contrary, fearing that the 
very claim which is now set up, of making an investigation as to 
whether the electors had been duly elected in the States, might be in- 
ferred, they guarded against such inference by providing that the 
grand committee should " not draw in question the number of votes 
on which any elector should have been appointed." 

If Congress when acting in its sovereign legislative capacity had 
not the constitutional right to confer on the two Houses of Congress 



when performing the subordinate duty devolved on them of counting 
the vote, or upon the grand committee the power " to draw in ques- 
tion the number of votes on which any elector should have been ap- 
pointed," a fortiori the two Houses of Congress, or this CommisBioa 
without such legislation do not i^ossess such power. 

Thus authority fortifies the conclusion that the two Houses of Con- 
gress, and cousetpaeutly this Commission, cannot go behind or reverse 
the determination as to who has been ai)poiuted electors as made by 
the lawful tribunal of the State. 

It has been said that although the Constitution does not give to 
Congress the right to question the determination of the tribunal 
which by the laws of the State is finally to decide who has been elected 
an elector, that in this case the offer is made to prove fraud in that 
final decision of the State tribunal ; that we must assume that the 
offer is made in good faith, and that fraud vitiates and renders void 
everything. It is true that fraud when proven before a tribunal hav- 
ing jurisdiction over the question in controversy will vitiate all trans- 
actions except such as are judicial or legislative. Without raising 
the inquiry whether the counting the votes is a procedure that comes 
within the exceptions, I ask whether it was ever heard that a charge 
of fraud made before a tribunal that otherwise had no jurisdiction 
over the question at issue conferred jurisdiction to try the question ? 
Does fraud give power ? I knew that it rendered void, but not that 
it created. Can it be claimed that while under our system of gov- 
ernment the determination as to who has been appointed an elector 
is with the States and not with the Federal Government, the alle- 
gation of fraud is potential in changing our system, and transfers the 
decision of the question as to who has been elected elector from the 
State to the Federal Government ? I think not. 

II. The Constitution provides that " no Senator or Representa- 
tive, or person holding an office of trust or profit under the United 
States, shall be appointed an elector," and it isclaimed that some hold- 
ing such offices were apx^ointed electors and were therefore ineligible, 
and that their votes should not be counted. 

The real object of this provision of the Constitution ceased when 
the electors came to exercise no volition in choosing a President and 
became the mere agents of a party, but still the Constitution stands 
and must be enforced if it can be. The provision, I think, is equiva- 
lent to saying that no one who holds an office of trust or profit under 
the United States shall be an elector; and no one has been. In every 
instance the elector who happened to hold an office of trust or profit 
under the United States resigned such office before assuming to per- 
form the functions of liis office as an elector, or resigned as an elector 
and another wae according to law appointed in his stead. 



10 

To my mind it is a sufiScient answer to all the charges of inel- 
igibility against electors that the provision of the Constitution on 
which the charges are based does not execute itself, and no law 
has been enacted to execute it. It is said that other provisions of 
the Constitution eseciite themselves. I think not. Courts are es- 
tablished by law, where the provisions can be vindicated, but this 
requirement of the Constitution cannot be enforced in the courts after 
the count before the two Houses has commenced, and after the elect- 
ors have voted. Neither can the two Houses stop the count for the 
purpose of ascertaining whether some one or more of the three hun- 
dred and sixty-nine electors, thousands of miles away, did or did not 
thirty years ago accept a commission as a United States commissioner 
or other unimportant office which he had forgotten he held, and of 
which his constituency were ignorant. The Houses of Congresp have 
no machinery enabling them to carry on such an investigation, and 
if a law should be passed to enforce the provision of the Constitution 
referred to, the penalty for its infraction would not be that the State 
should be dejirived of its vote. And further, the functions of the 
office of elector are required by law to be performed and in fact were 
discharged on the first Wednesday of December last, and if the 
elector were subsequently declared ineligible such decision would not 
invalidate the act performed on the day fixed. If a State constitu- 
tion required that a sherift' should have a freehold estate worth 
$5,000, aud if after he had performed the duties of his office for a 
year he was on qiio ivarranto ousted because of its being proven that 
he had no estate of any kind at any time, no one would claim that 
his acts as de facto sheriff were invalid. The acts of the State gov- 
ernments in the States formerly in rebellion, except those acts that 
were in hostility to the United States Government, have been recog- 
nized by the Supreme Court of the United States as valid, because 
they were the acts of de facto governments. I think there is nothing 
in the objection founded on ineligibility. 

III. Should the votes for President and Vice-President, given by 
what are called the Hayes electors, in Florida, Louisiana, Oregon, and 
South Carolina, duly authenticated by those States respectively, be 
counted ? 

The Legislate re of 

FLORIDA, 

as authorized by the Constitution of the United States, directs that 
the presidential electors shall be appointed by the lawful voters of 
that State voting at their respective precincts; that the inspectors of 
election at those precincts shall report the result to the county board 
of canvassers ; and in tlie act of February 27, 1872, it is enacted that. 



11 

the board of county canvassers sliall report to aboard of State canvas- 
sers, who " shall proceed to canvasa the retiims of such election, and 
determine and declare who shall have been elected, as shown by said 
returns. If any such returns shall bo shown or shall appear to bo so 
irregular, false, or fraudulent that the board shall be unable to de- 
termine the true vote for any such officer or member, they shall so 
certify, and shall not include such return in their determination and 
declaration." 

This board of State canvassers, which was to that end created, made 
its final determination and then declared that the Hayes electors had 
been elected by about nine hundred majority ; and these electors on 
December 6, 1876, cast their vote for Rutherford B. Hayes. All of 
which is certified to us by the electors and by the undisputed gov- 
ernor of Florida. On this statement, the votes of the electors should 
be counted for Governor Hayes. 

And what reasons are urged against their being so counted f They 
are these : The attorney-general of Florida was by law a member of 
the State board of canvassers, and certifies that the Tilden and not 
the Hayes electors were duly appointed. But it is clear that his cer- 
tificate has in law no more validity than a letter from any other cit- 
izen of Florida would have, and cannot be recognized by this Com- 
mission. 

Another reason urged why the vote of the Hayes electors should 
not be counted is, that after the Hayes electors had cast their votes 
on December G, 1876, and about the 1st of Januaiy, 1877, Mr. George 
F. Drew succeeded Governor Stearns as governor of Florida ; and on 
the 26th of Januarj', 1877, fifty days after the electors of Florida had 
and must, if ever, have cast their votes, Governor Drew certified that 
the Tilden electors had been elected. It is he who is the governor 
of Florida when the electors were appointed who must by law certify 
to their appointment, and not he who is elected after they have been 
appointed and havejdischarged all their duties. Governor Drew bases 
the declaration of his certificate that the Tilden electors had been ap- 
pointed on the adjudication of the court of Florida to that efl'ect, 
given on a proceeding in the nature of a quo warranto on the 2oth of 
January, 1877. If a State court under a quo warranto, fifty days after 
the electors have accordingto the Constitution and laws of the United 
States cast their vote, can invalidate the acts of the electors, then 
the State courts can control the succession to the Presidency of the 
United States. It would be strange, indeed, if this Coumiission should 
disregard the determination of the State board of canvassers, which 
the laws of the State say shall detcrmiue and declare who have been 
appointed electors, and should be bound to adopt the conclusions of 



12 

a State court clothed witli no such power. The Commission should, 
in my opinion, count the vote of Florida for Kutherford B. Hayes. 
The laws of the 

STATE OF LOUISIANA 

as to the election of electors are similar to those of Florida. The 
returning officers, consisting of five persons appointed by the State 
senate from all political parties, constitute the tribunal finally to de- 
termine who has been elected, and have authority to reject returns 
from any place in which they are satisfied that by reason of fraud or 
violence there has not been a fair election. 

It has been claimed that these returning officers have improperly 
rejected certain returns so as to change the result in the State. 

It has been sufficiently shown that neither the two Houses of Con- 
gress or this Commission have jurisdiction to go behind and reverse 
the determination of the tribunal which the State has said shall 
finally decide who has been elected, and that the allegation of fraud 
in the action of the returning board does not give jurisdiction over 
the subject to the two Houses of Congress or to this Commission. 

It has been questioned whether there were sufficient laws in Louisi- 
ana to authorize the election of electors. It has been shown by 
others that the objection is not well taken. The revision of the laws— 
the digest of the laws— the courts of the State, and all the people 
properly treat their election laws as sufficient, and we while engaged 
in the summary process of counting the vote may so accept it. 

It is said that affidavits of fraud and violence were not filed within 
the time fixed by the statutes of the State, and that consequently the 
returning officers had no jurisdiction to decide whether certain returns 
should or should not be rejected. There may have been abundant 
reasons why the affidavits were not filed within the prescribed time, 
and of that the returning officers were to judges. The provision as to 
time is at best only directory. The affidavits werQ not jurisdictional ; 
if they were, Louisiana for the want of the affidavits might have 
been without any determination of the result of the election, and 
either anarchy must have followed or the result not have been ac- 
cording to the truth as intended by the statute. 

It is urged also that the laws of Louisiana require that the final 
tribunal, called in this State " returniag officers," should consist of 
five members, and of different political opinions, and that in fact it 
consisted of only four members and these all of the same political 
opinion. 

If the provision that the board must consist of those having differ- 
ent political opinions were constitutional, which I much doubt, the 
requirement is clearly only directory. It can hardly be claimed that 



13 

if ouo member cliauj^ed his opiuiou in a night the determination of 
the board thereby became void, and that the confusion therefrom 
resulting must be accei^ted. 

If the board should have consisted of five members, the fact that 
there were only four does not invalidate its decisions ; the law says 
a majority shall be a quorum. The Supreme Court of the United 
States consists of nine judges, but it does not cease to be a court be- 
cause by death or resignation there are only eight. It is seldom that 
a board of directors is full but no one ever questioned the authority 
of the board on that account. If the fifth member of the canvass- 
ing board was not appointed from unworthy motives all will con- 
demn it, but no one would say that the penalty for this impropriety 
is that the State shall lose its vote. 

It has been urged, too, that the votes of Louisiana should not bo 
counted, because, as alleged, it had no State government and Kel- 
logg who signed the electors' certificates was not in truth the gov- 
ernor of that State. And yet, in November and December, when tho 
electors were appointed and when the electoral vote was cast, a State 
government with Kellogg as governor existed by tho consent of both 
political parties, was represented in both Houses of Congress, had 
been recognized by every branch of Government, and regulated the 
public aff'aiis of society in that State. 

I see no good reason why the vote of Louisiana, as determined by 
the State returning officers and as certified by the recognized gov- 
ernor and as cast by the Hayes electors, should not be counted. 

There are returned here from the 

STATE OP OREGON 

two sets of electoral votes, one from Cartwright, Odell, and Watts, 
certifying that they had cast their votes for Governor Hayes ; the 
other from Cronin, Miller, and Parker, certifying that they had cast 
two votes for Governor Hayes and one vote for Governor Tilden. 
The question is which is the true return. I am satisfied the former 
is, and for these two reasons : 

First. By the sixtieth and thirty-seventh sections of the election 
law of Oregon, it is made the duty of the county clerk to send an ab- 
stract of the votes cast in the county for electors to the secretary of 
state, and it is made his duty, in the presence of the governor, to can- 
vass the votes. The secretary of state is the final and sole canvass- 
ing officer. 

To ascertain who are the true presidential electors from Oregon, 
we must discover who the tribunal that the laws of Oregon enact 
shall finally determine thatqestion has adjudged to bo such electors ; 
that adjudication may be certified to us by tho governor or be made 



14 

known to us by the record of such final determination. Tlie gov- 
ernor's certificate is only valuable as evidence of what the final tribu- 
nal has adjudicated, and may have been forged, or may from design or 
mistake be untrue. The two Houses of Congress, or this Commission, 
will be controlled by the State's decision as to who has been elected. 
In this case the canvass of the secretary of state, which is the final de- 
termination of the question as to who have been elected electors, has 
been sent in the package containing the list of votes cast for President 
and Vice-President, and the electoral bill has given us authority to 
consider papers so presented to us, but without such specific author- 
ity, we certainly would look to a record that is controlling. 

The canvass of the secretary of state, the State's final determina- 
tion, being thus before us, shows that Cartwright, Odell, and Watts 
received 15,200 votes, being a thousand more votes than were received 
by any other candidates for electors. And the fortieth section of the 
election laws of Oregon iirovides as follows, namely : 

That in all elections in this State the person having the highest number of votes 
for any office shall be deemed to have been elected. 

I am at a loss to see how this Commission can do otherwise than 
deem Cartwright, Odell, and Watts elected electors. 

Second. By the very showing of those who claim one vote from 
Oregon for Governor Tilden, he is not entitled to it. Watts, one of 
those who had a majority of votes, was, when elected, a postmaster, 
and Governor Grover therefore concluded that he was authorized to 
give a certificate of election to Cronin, who had the nest highest 
vote. The governor will find few to agree with him that, when a 
majority of the people declare by their ballots that they do not want 
a citizen to hold one of their ofiices, such a vote gives him a title 
to the office. But Watts, though a jiostmaster when elected, resigned 
that office before December 6, 1876. On that day Cartwright and 
Odell met, and as Oregon was entitled to three votes, there was a 
vacancy. Cronin met and he found two vacancies. All three per- 
sons whom the governor certified were elected electors, Cartwright, 
Odell, and Cronin, unite in informing us that there was one vacancy 
in the college. Cronin says there were two. Under this state of facts 
Cartwright and Odell filled the vacancy by appointing Watts, who, 
if ever ineligible, had ceased to bo so by resigning the office of post- 
master. 

Cronin, on the other hand, filled the two vacancies that ho found by 
appointing Miller and Parker electors ; and the only question is 
whether Cartwright and Odell, or Cronin, had the right to fill vacan- 
cies. And that question is solved by deciding whether two or one is 
a quorum and majority of a college of three. 



15 

I think tho three electoral votoa from the State of Oregon for Gov- 
ernor Hayes should bo counted. 

The first objection made to the vote of the Haj-es electors from 

SOUTH CAROLINA 

is that the Constitution of the United States guarantees to that State 
a republican government, which it is claimed means a government 
under which the i)eople exercise tho supremo power, and that the 
State did not have such government. 

When the Constitution was being framed Edmund Randolph offered 
this resolution : 

Resolved, That a republican sovcmmout ought to bo guaranteed by the United 
States to each State. 

After the debate this resolution was rejected, and the following 
adopted : 

Resolved, That a republican form of government shall be guaranteed to each 
State. 

Few of the States would consent to change the Constitution so 
that the Federal Government could constitutionally interfere with 
the State governments further than to see that their /or/» of govern- 
ment was republican. Such a change would seriously affect the sov- 
ereign character of the State. The government of South Carolina 
was in November, 1876, unquestionably republican inform, and that 
for us is the only proper inquiry. 

Another objection to counting this vote is that the constitution of 
South Carolina requires that there shall be a registration law, and 
that there was none, and that consequently the election of electors is 
void. It is sufficient answer to this objection that the Constitution of 
the United States provides that the electors of any State shall be ap- 
pointed "in such manner as the Legislature thereof shall direct," and 
not in such manner as the constitution of the State shall direct. The 
Legislature in this regard acts under the authority of tlie Constitution 
of the United States and is entirely untrammeled by State constitu- 
tions. 

Another objection is that the Federal troops prevented a free elec- 
tion. The two Housesof Congress and this Commission will not with- 
hold from the Federal Government the presumption that its high 
officers have acted in accordance with tho Constitution, laws, and 
best interests of the nation, a presumption which in the summary 
procedure of counting the vote for President and Vice-President will 
be held to be conclusive. 

The two thousand and second section of the Revised Statutes of 
the United States provides by necessary implication that troops may 
be detailed to keep the peace at the polls. If troops were present at 



16 

the polls the presumption is, and for the purpose of this proceeding 
the conclusive presumption is, that they were so present to keep the 
peace. We are not required to go into evidence on this point ; espe- 
cially when we know that to do so would be to delay the inaugura- 
tion of the citizen who has been elected President until after the 4th 
of March, and thus as the law stands entirely defeats his inaugura- 
tion. 

My opinion is that the votes of the Hayes electors of South Caro- 
lina should be counted. 



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